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Appellate attorneys frequently wrestle with the lower courts register of actions. Sometimes it answers your questions, sometimes it raises more. In a published opinion, Bellevue Ventures, Inc. v. Morang-Kelly Investment, Inc. (Docket 309743), the Michigan Court of Appeals remanded a case to the lower court for an evidentiary hearing because of deficiencies and irregularities in the record and register of actions. In April 2010 the plaintiff filed a complaint alleging breach of contract and unjust enrichment. The plaintiff-appellee, in the lower court, sought to strike the defendant-appellants counter complaint, amended answers, and amended affirmative defenses because all of them failed to appear on the register of actions and in the physical case file. The defendant-appellant, at that time, presented all the documents, which were time stamped by the Wayne County Clerk’s office. Defendant proved that the third party summons had been sent by the clerk. However, the lower court struck the pleadings due to “defendant’s failure to ensure that they had been filed with the clerk pursuant to MCR 2.107(G).” The plaintiff prevailed and was awarded a substantial sum. On appeal, the defendant-appellant claimed the lower court erred by, “striking defendant’s counter-complaint, amended answers and amended affirmative defenses,” and that the court erred by "proceeding with a bench trial rather than a jury trial.” The Court of Appeals found that “proof of filing with the clerk and not proof of filing by the clerk is sufficient to establish compliance with MCR 2.107(G).” In other words, you can give your pleadings to the clerks, but you cannot, and do not have to ensure what they do with them. Lastly, the defendant-appellant argued that the trial court erred by “…proceeding with a bench trial rather than a jury trial.” The Court of Appeals first found, “…the record insufficient to determine this issue.” However noting, that the bench trial was objected to by the defendant, who “… asserted that the plaintiff had filed a jury demand on which defendant had relied.” While it is reflected that the plaintiff paid a jury fee and filed a jury demand “no jury demand appears in the lower court record.” The Court of Appeals vented its frustration with the deficiencies and irregularities in the record and the register of actions. Given the mess the clerk’s office made, the Court of Appeals could not make a ruling and remanded the issue to the trial court for an evidentiary hearing. “Then, and only then, can a final determination be made as whether or not defendant was entitled to a jury trial.”

Labels: deficiencies and irregularities, lower court docket, michigan court of appeals, register of actions, reversed and remanded, trial court record, Wayne County

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The 6th Circuit Court of Appeals affirmed the ruling of the District Court that an officer is not entitled to qualified governmental immunity and denied the defendant’s motion for summary judgment in a published opinion in Romo v. Largen, July 23, 2013 (Docket No. 12-1870). Plaintiff Candido Romo was sitting in the driver seat of his parked car, when he was approached by officer Jeff Largen. Romo was arrested for operating a vehicle while intoxicated. Romo filed a suit under §1983 for violation of his constitutional rights and intentional torts. The 6th Circuit Court of Appeals viewed the denial of officer’s qualified governmental immunity on the facts and noted that the officer did not have probable cause to arrest Romo for operating a vehicle while intoxicated. Romo contended “he was sleeping off the night of drinking and that he could not drive because he did not have the keys.” While it is possible for the police to have probable cause, the Court reasoned that merely sitting in a car does not satisfy probable cause. The 6th Circuit Court further noted that a fact finder could find that the officer acted with malice. The officer’s police report that described the incident claimed he saw in his rear view mirror a tan Dodge Ram van passing a semi tanker in the no passing zone. The police report noted that Romo denied driving and stated that the officer did not follow the van because the officer made a U- turn and lost sight of the van and then the officer saw Romo’s parked van. According to the 6th Circuit, “If the officer lied on his police report in order to obtain prosecution against Romo, that is strong evidence of malice.” The only question here is whether the officer was acting in good faith or with malice. Here, it was clear that the officer acts were with malice and a fact finder would draw an inference of actual malice.

Labels: 6th Circuit, good faith, governmental immunity, Grand Rapids, malice, Michigan, operating while intoxicated, probable cause, qualified immunity, Section 1983

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